JUDGMENT JAYANT PATEL, J. The present appeal is directed against the order dated 18-1-2013 passed 'by learned Single Judge of this Court in Sp1.C.A. No. 3057 of 2012, whereby learned Single Judge, for the reasons recorded in the order, dismissed the petition. 2. We have heard Mr. Asthavadi, learned Counsel appearing for the appellant-original petitioner, Mr. Patel for M/s. H. L. Patel Advocates for respondent Nos. 1 and 2, Mr. Jayswal, learned A.G.P. for respondent No. 3 and Mr. Vyas for respondent No.4, and taken up the matter for final disposal. 3. The brief facts are that, wife of the appellant-petitioner Smt. Sarojben Wallington Macwan, daughter of Hanokhbhai Christian, was working as a teacher with Municipal School Board at Ahmedabad. Because of her health problem, she voluntarily retired on 31-12-2006. Thereupon, she was receiving pension. Thereafter, she expired on 4-11-2007. The petitioner in the capacity as husband of the deceased applied to get family pension and produced certificate of marriage with the deceased. The respondent did not sanction family pension. The petitioner had also preferred earlier Spl.C.A. No. 8224 of 2011 which came to be disposed of by learned Single Judge of this Court relegating the petitioner to make appropriate representation. Such representation was made, and ultimately, vide order dated 8-11-2011, the authority rejected the claim of the petitioner for family pension. Under the circumstances, the petitioner had preferred Spl.C.A. No. 3057 of 2012 before this Court. The said petition came to be dismissed by learned Single Judge on the ground that name of the petitioner was not nominated by the deceased employee; in the ration card even the name of the petitioner did not exist and the deceased had not shown her marital relationship, and therefore, rejection of the claim was just and proper. Under the circumstances, the present appeal before us. 4. On hearing the learned Counsel appearing on both sides, it appears that certificate of marriage is produced by the petitioner on page 21 with Annexure-C. Not only that, but notice was issued to the son, respondent No.4 herein, who was born out of the wedlock of the petitioner and the deceased. He has filed affidavit in the present appeal, wherein at Paras 3, 4 and 5, it is mentioned as under: "3. I submit that my father was staying at Baroda due to his service and my mother was staying at Ahmedabad due to her service. He has filed affidavit in the present appeal, wherein at Paras 3, 4 and 5, it is mentioned as under: "3. I submit that my father was staying at Baroda due to his service and my mother was staying at Ahmedabad due to her service. My father used to come to Ahmedabad very often. My parents have never filed or obtained divorce, they continue to be husband and wife till death of my mother. I was staying with my mother at Ahmedabad. 4. Due to health reason, my mother took voluntary retirement from the service and died on 4-11-2007. Due to her health situation, she had even not mentioned my name as nominee in her service record. 5. I submit that even in my passport, name of my father and mother is reflected. Copy of my passport is enclosed herewith and marked as Annexure-I to the reply." 5. Learned Counsel Mr. Vyas, appearing for respondent No.4, has also declared before us that respondent No.4 has no objection if family pension is paid to his father, appellant-original petitioner. 6. It is in view of the aforesaid factual background, the matter is to be considered and examined. It is true that as per the respondent, the deceased did not nominate any person in the pension form as entitled to receive pension and since the deceased did not mention any persons name in the pension form, respondent Nos. 1 and 2 have contended that the appellant-petitioner could not be entitled to family pension. 7. Learned Counsel for the appellant has relied upon decision of Division Bench of this Court in case of Abedakhatun Y. Malek v. Director of Pension, reported at 2011 (0) GLHEL-HC 225882 : [ 2012 (1) GLR 368 ] and contended that the petitioner would be entitled to family pension. Further, learned Counsel also relied upon Rule 88 of the Family Pension Scheme of the Gujarat Civil Services (Pension) Rules, 2003 (hereinafter referred to as the Pension Rules). It was, therefore, submitted that the petitioner was entitled to family pension and he has been wrongly denied family pension of his wife, who has expired. 8. As observed earlier by us, evidence has' come on record about the relationship of husband and wife by the petitioner with deceased Sarojben, who was a teacher and receiving pension. It was, therefore, submitted that the petitioner was entitled to family pension and he has been wrongly denied family pension of his wife, who has expired. 8. As observed earlier by us, evidence has' come on record about the relationship of husband and wife by the petitioner with deceased Sarojben, who was a teacher and receiving pension. Rule 88 of the Pension Rules would apply for the purpose of entitlement of family pension. Rule 88(a)(i) reads as under : "Rule 88 - For the purpose of this Chapter - (a) "family" in relation to a Government employee means - (i) wife, in the case of a male Government employee or husband in the case of a female Government employee, even if the marriage took place before or after retirement of the Government employee; (ii) a judicially separated wife or husband, provided that the marriage took place before the retirement of the Government employee." 9. The aforesaid shows that either of the spouse, wife or husband as the case may be, would be included in the family and such would also include separated wife or husband, even by judicial separation. If we consider the date of marriage, the same is on 4-11-1975, whereas the date of retirement is 31-12-2006. Therefore, prior to even appointment on 2-9-1982, their marriage had taken place. The son of the petitioner and the deceased employee, respondent No\ 4 herein, is born out of their wedlock and he has not stated that there was any divorce between the petitioner and his mother, or that the matrimonial relationship as lawful husband and wife had come to an end prior to retirement. Under these circumstances, once the status as that of husband of the deceased was proved, the appellant-petitioner would be entitled to family pension. At this stage, we may refer to the decision of Division Bench of this Court in case of Abedakhatun Malek, 2011 (0) GLHEL-HC 22582 : [ 2012 (1) GLR 368 ] wherein at Paras 8 and 9 it was observed thus : "8. At this stage, we may refer to the decision of Division Bench of this Court in case of Abedakhatun Malek, 2011 (0) GLHEL-HC 22582 : [ 2012 (1) GLR 368 ] wherein at Paras 8 and 9 it was observed thus : "8. The learned Counsel has also put reliance on various citations, which are as under : (1) Jodh Singh v. Union of India, 1980 (4) SCC 306 , in which, it has been held that, "benefit of special family pension admissible under Regulation 74 of the Pension Regulations for Indian Air Force admissible to wife of the officer only in the event of the death of the officer and such benefit would be the exclusive property of his widow and the officer is not entitled to make testamentary disposition of the same during his lifetime". (2) Rampyari Bai v. Municipal Corporation, 1987 (Supp) SCC 263, wherein it was found that, 'there was no valid marriage and therefore, there could be no valid nomination in favour of the petitioner by the deceased for payment of family pension' and so the Hon'ble Apex Court had not interfered with. By citing' the said decision, the learned Counsel for the appellant has submitted that whether the marriage was valid one and it was subsistence at the time of death of the pensioner, is the main criteria to be considered while deciding the question of family pension and there appears force in it. (3) Smt. Violet Issaac v. Union of India, 1991 (1) SCC 725 , wherein it has been held that : " ..... The Family Pension Scheme under the Rules is designed to provide relief to the widow and children by way of compensation for the untimely death of the deceased employee. The Rules do not provide for any nomination with regard to family pension, instead the Rules designate the persons who are entitled to receive the family pension. Thus, no other person except those designated under the Rules are entitled to receive family pension. The Family Pension Scheme confers monetary benefit on the wife and children of the deceased Railway employee, but the employee has no title to it. The employee has no control over the family pension as he is not required to make any contribution to it. The Family Pension Scheme confers monetary benefit on the wife and children of the deceased Railway employee, but the employee has no title to it. The employee has no control over the family pension as he is not required to make any contribution to it. The family pension scheme is in the nature of a welfare scheme framed by the Railway administration to provide relief to the widow and minor children of the deceased employee...." (4) G. L. Bhatia v. Union of India, 1999 (5) SCC 237 . Relevant Paragraphs 3, 4 and 5 reproduced hereunder : "3. Under Rule 54, sub-rule (14)(b)(i) the expression family has been defined thus : 54.(14)(b)(i) Wife in the case of a male Government servant, or husband in the case of a female Government servant...." 4. Sub-rule (8)(ii) of Rule 54 states that : 54.(8)(ii) If a deceased Government servant or pensioner leaves behind a widow or widower, the family pension shall become payable to the widow or widower, failing which to the eligible child. 5. In the light of the aforesaid provisions and there being no divorce between the husband and wife, even though, they might be staying separately, the appellant husband would be entitled to the family pension in terms of the rules as noted aforesaid and the authorities, therefore, committed error in not granting family pension to the appellant relying upon the nomination made by the deceased wife of the appellant. The impugned order is, accordingly, set aside and this appeal stands allowed." 9. We have considered the above-referred legal position and we are agreeable to the submissions made by the learned Counsel for the appellant, and in our view, the same are squarely applicable to the present case on hand. It appears that during the lifetime of deceased pensioner Mr. Yashinmiya U. Malek, his marriage was subsisted and till he expired, no divorce has taken place between the deceased pensioner and the appellant. It is important to note that family pension is provided by statutory provisions and notifications and circulars issued by the competent authority from time to time and the concerned officials are supposed to follow the same. Yashinmiya U. Malek, his marriage was subsisted and till he expired, no divorce has taken place between the deceased pensioner and the appellant. It is important to note that family pension is provided by statutory provisions and notifications and circulars issued by the competent authority from time to time and the concerned officials are supposed to follow the same. In the computation for the claim of family pension, it would not be open to decide the issue of desertion and to attribute the cause of desertion because the issue of desertion is never a criteria for granting and denying the family pension. For grant of family pension, the only consideration would be that the claimant ought to be legally wedded wife or husband of the pensioner and he/she be alive on the date of death of the pensioner. Even if the pensioner has nominated third person excluding his wife, then also, the right of the legitimate wife/widow to claim family pension cannot be brushed aside." 10. We find that the same principle and the same legal position would apply in the present case. Merely because name was not mentioned in the nomination form is not a justifiable ground to deny family pension unless the factum of marriage or relationship of husband and wife was at doubt. Whether the name is mentioned in the ration card or other record would have little importance when the marriage is proved, the same is certified and registered and son is born out of the wedlock and he has declared accordingly. There is no other evidence brought to our notice that the claim of the original petitioner as husband of the deceased, or that the claim of respondent No.4 as being son of the original petitioner and the deceased is bogus or otherwise. Hence, we find that the contentions raised on behalf of respondent Nos. 1 and 2 for denying pension do not deserve to be accepted. 11. In view of the aforesaid observations and discussion, respondent Nos.1 and 2 are directed to treat the petitioner as eligible and entitled to get family pension of deceased Sarojben after her death on 4-11-2007. Respondent Nos. 1, 2 and 3 shall calculate the amount of family pension, including arrears, admissible to the appellant and shall disburse the amount within a period of three months from the date of receipt of a copy of this order. Respondent Nos. 1, 2 and 3 shall calculate the amount of family pension, including arrears, admissible to the appellant and shall disburse the amount within a period of three months from the date of receipt of a copy of this order. The respondents shall continue to pay regularly such family pension to the appellant until he survives. 12. In view of the above, the appeal is allowed to the aforesaid extent and the judgment and order passed by learned Single Judge is set aside. Direct Service is permitted. Appeal allowed.